Anglo Coal (Moranbah North Management) Pty Ltd [2018] QIRC 52

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Anglo Coal (Moranbah North Management) Pty Ltd & Anor [2018] QIRC 052 PARTIES: Anglo Coal (Moranbah North Management) Pty Ltd (First Applicant) Anglo American Metallurgical Coal Pty Ltd (Second Applicant) CASE NO: AD/2017/43 PROCEEDING: Application for exemption DELIVERED ON: 1 May 2018 HEARING DATES: 4 December 2017 (Submission of the Anti-Discrimination Commission Queensland) 25 January 2018 (Mention) 22 March 2018 (Applicants' Further Submissions) HEARD AT: Brisbane (25 January 2018) MEMBER: Deputy President Swan ORDERS 1. The Application for an Exemption under s 113 of the Anti-Discrimination Act 1991, from the operation of ss 14, 15, 15A, 124 and 127, in relation to the attribute at s 7(a) (i.e. sex), is granted. 2. The Application for an Exemption is granted for the period commencing 1 May 2018 to 28 January 2020. CATCHWORDS: ANTI-DISCRIMINATION - APPLICATION FOR EXEMPTION - Exemption from operation of specified provisions of the Anti- Discrimination Act 1991 - Exemption relates to female only intake in underground metallurgical coal mine - Exemption sought under s 113 of the Act from the operation of ss 14, 15, 15A, 124 and 127 in relation to the attribute in s 7(a) of the Act (i.e. sex) - Application granted. LEGISLATION Anti-Discrimination Act 1991 -- 1 of 8 -- 2 CASES: Exemption Application re: Palmpoint Pty Ltd [2006] QADT 12 Downer EDI Mining Pty Ltd (No. 2) [2013] QCAT 532 Department of Justice and Attorney-General (2016) QCAT 537 YFS Ltd (2015) QCAT 295 Wesley Mission Brisbane [2015] QCAT 231 Gold Coast 2018 Commonwealth Games Corporation [2017] QIRC 038 Downer EDI Mining [2013] QCAT 99 APPEARANCES: Mr V. Rogers of Ashurst Australia, Solicitors for the Applicants. Decision [1] On 17 October 2017, Anglo Coal (Moranbah North Management) Pty Ltd (First Applicant) and Anglo American Metallurgical Coal Pty Ltd (Second Applicant) (the Applicants), filed an Application for an Exemption from the operation of specified provisions of the Anti-Discrimination Act 1991 (the Act). [2] Section 113 of the Act enables this Commission to grant an applicant an exemption from complying with sections of the Act. [3] This Application relates to the operation of the Moranbah North Mine which is described as an underground metallurgical coal mine in the Bowen Basin, located near the township of Moranbah Queensland. The management company is a wholly owned subsidiary of Anglo American Metallurgical Coal Pty Ltd. [4] The initial Application related to the Applicants' Mature-Age Female Trainee Program which is designed to recruit eight females over the age of 25 years of age, as trainees to undertake a Certificate II in Underground Coal Mining, through to on the-job training. [5] Section 113 of the Act refers to the "Tribunal". "Tribunal" is defined in the Schedule of the Act as being: "(a) in relation to a work-related matter - the industrial relations commission." [6] Section 113(2)(a) of the Act requires that an application for an exemption must be sent to the Anti-Discrimination Commission Queensland (the ADCQ). The process permits the ADCQ to conduct searches against its records of whether any complaints have been made against the Applicants. It also allows the ADCQ to inform the Queensland Industrial Relations Commission (this Commission) of whether it has any objection to the application for an exemption. -- 2 of 8 -- 3 [7] On 4 December 2017, the ADCQ advised this Commission that there were no current complaints against the Applicants and that the ADCQ had no objection to the Application per say, but drew the Commission's attention to the component of the Applicants' claim as it related to the female-only intake having obtained the age of 25 years. [8] The ADCQ stated that: "… considers the application demonstrates that an exemption to allow targeted recruitment of females in underground mining may be reasonable and appropriate. However, the Commission [the ADCQ] considers the case for the proposed age qualification is not made out". [9] The ADCQ made reference to the approach adopted by the former Anti-Discrimination Tribunal in a number of similar applications. The rationale was expressed in Palmpoint Pty Ltd1 as follows: "[18] Effectively, the provisions of section 113 of the Act allow for a preliminary determination upon which the applicant can rely, to ensure that the carrying out of their business is not unlawful. It also allows for the effective monitoring of the matter by the Tribunal, as exemptions under the section are only applicable for a maximum period of five years. At the conclusion of the period for which the exemption is granted, the applicant must reapply for an exemption if they wish to retain the benefit of assured compliance with the Act, insofar as their conduct remains within the parameters of exemption granted. Should circumstances change within that period, this will come to the attention of the Tribunal before any further exemption is granted. [19] In contrast, the provisions of section 104 remain in force indefinitely (until repeated or amended by Parliament) and are open to interpretation of parties concerned in circumstances as and when they arise. The section does not provide a reliable shield against a complaint, as doing acts in accordance with the section, that is, acts "to benefit the members of a group with an attribute" will almost always involve the doing of an act which treats persons without the attribute less favourably. Accordingly, it will almost always run the risk of giving rise to "an arguable case" of unlawful discrimination. [20] In my view, the purpose of section 113 is to allow people the protection and security of a shield against complaints in circumstances where their proposed actions do constitute a prima facie case of unlawful discrimination, but where they are not inherently inconsistent with the objects of the Act. The section allows for a regular review of the exemption or, in the alternative, for such exemption to simply expire. For these reasons, it is desirable in my view to invoke the section in circumstances such as these." 1 Exemption Application re: Palmpoint Pty Ltd [2006] QADT 12 (7 April 2006) -- 3 of 8 -- 4 [10] After a consideration of these matters at a Mention before this Commission on 25 January 2018, further submissions were filed on 22 March 2018 and the Applicants withdrew the age component of 25 years, for the exemption sought. Attributes for which the exemption is sought [11] The Applicants wish only to seek an exemption in relation to the Program under s 113 of the Act from the operations of ss 14, 15, 15A, 124 and 127, in relation to the attribute in s 7(a) of the Act (i.e. sex). [12] The Applicants submitted that the trainees would be engaged to work in underground operations (rather than the longwall only) at Moranbah North Mine and complete a Certificate II in Underground Coal Mining Program. [13] The Applicants stated that: "Traditionally, the workforce at underground mine sites is almost exclusively male; Men invariably make up the majority of Applicants for entry level traineeship positions in underground mining; At the mine, the percentage of the employee workforce that is female is 8 per cent Of the 249 people engaged by the Applicants in underground roles at the mine, 5 are female (2 per cent) and only 2 of the females are over the age of 25 years; Under legislation, women were not allowed underground until 1980s." [14] The Applicants drew the attention of the Commission to the matter of Downer EDI Mining Pty Ltd (No. 2)2 (Downer) and submitted that the rationale adopted by the ADCQ in that matter was applicable to this Application. [15] Downer had applied for an exemption under s 113 of the Act in relation to an initiative to recruit ten female entry level operators to join the teams working on each of five sites within the Open-Cut Mining business in Queensland each year. [16] In granting the exemption sought by Downer, Senior Member Endicott stated, inter alia, that: "[14] I am not satisfied that the provisions in section 105 of the Act would be sufficient to provide a defence to a complaint of unlawful discrimination to the advertising and recruiting of female candidates to 10 positions at mine sites. The proposal is to set an annual quota of 10 positions in five mine sites in Queensland and to achieve over time, together with other disparate steps, an increased female waged workforce in Downer EDI Mining. The 2 Downer EDI Mining Pty Ltd (No. 2) [2013] QCAT 532 (18 October 2013) -- 4 of 8 -- 5 proposal is not strictly promoting equal opportunity, as there will be each year more than 10 positions advertised and filled with candidates who fall outside of the scope of this proposal. There is nothing to suggest in the application that some corresponding equal opportunity efforts will be made to ensure that female candidates of equal merit to male candidates will be recruited and hired for those other positions at open-cut mine sites. [15] With that consideration in mind, I do not assess this quota proposal as necessarily promoting of itself equal opportunity for women. If the proposal is to proceed without attracting liability for breach of the AD Act, another source of exemption must be considered. In the absence of an appropriate specific exemption in the Act, a general exemption under section 113 would be needed. … [18] In addition to this specific proposal, Downer EDI Mining will implement non discriminatory ways of achieving its goal of increased gender diversity as set out in the published gender diversity bluesheet. However, I am satisfied that isolating 10 positions annually at each of five open-cut mines sites in Queensland for female candidates at entry level operator positions will appropriately supplement other non discriminatory ways of increasing the female workforce in accordance with the projected gender diversity goals. … [20] I am satisfied that an exemption should be granted to Downer EDI Mining Pty Ltd from the operation of sections 13, 14, 15, and 127 of the Anti-Discrimination Act 1991 in relation to the attribute referred to in section 7(a) of the Act from 18 October 2013 to 17 October 2018 in respect of the recruiting and employment of persons for positions at five designed open-cut mining sites in Queensland." [17] Relying upon that reasoning and applying it to the Application before the Commission, the Applicants submitted (in its Further Submissions) that: "2.2… (a) The Second Applicant is currently formulating a diversity and inclusion strategy that will apply across its coal mines in Australia. It is expected that the strategy will be finalised in about April 2018, and will later be rolled out to the Australian coal mines. (b) One of the aims of the strategy will be to encourage and facilitate the entry into the business of groups of people who have historically been poorly represented in the business, including, but not limited to, women. (c) The Program is one way in which the Applicants consider that they can begin to implement the strategy in a substantive way. -- 5 of 8 -- 6 (d) It is unlikely that the Program will be the only way in which the strategy will be implemented across the broader business, given that the strategy will have application across all the Second Applicant's Australian coal mines, and is yet to be finalised. (e) It is likely that other, non-discriminatory ways of achieving the strategy will be implemented (such as, for example, additional training across the business). (f) The First Applicant will be advertising for, recruiting and selecting trainees to be engaged to work at the Mine, other than through the Program." [18] Other matters before the ADCQ were cited by the Applicant relative to the granting of an exemption from ss 14, 15 101 and 127 of the Act. Those include, but not exhaustively, the following:  Department of Justice and Attorney-General3 - To recruit female correctional officers, correctional supervisors, and trade instructors at Brisbane Women's Correctional Centre and its subsidiary units;  YFS Ltd4 - Advertise for and recruit specifically male or female caseworkers for its domestic violence team; and  Wesley Mission Brisbane5 - Restrict recruitment to a male for the role of a Youth Support Worker in the Youth At Risk Alliance Program when there is no other male support worker available. Exemption considerations [19] The power to exempt an applicant from the operation of a particular part of the Act is discretionary. There have been a number of considerations made to ensure that the exemptions were only granted where appropriate. [20] In Gold Coast 2018 Commonwealth Games Corporation6 at [13], His Honour Deputy President O'Connor cited the following considerations: "(i) Whether the exemption is necessary; (ii) Whether there are any non-discriminatory ways of achieving the objects or purposes for which the exemption is sought; (iii) Whether the exemption is in the community interest; (iv) Whether any other persons or bodies other than the applicants support the application; (v) Whether it is reasonable and appropriate to grant he exemption, and 3 Department of Justice and Attorney-General (2016) QCAT 537 (11 March 2016) 4 YFS Ltd (2015) QCAT 295 (2 July 2013) 5 Wesley Mission Brisbane [2015] QCAT 231 (19 May 2015) 6 Gold Coast 2018 Commonwealth Games Corporation [2017] QIRC 038 -- 6 of 8 -- 7 (vi) The effect of not granting the exemption". [21] Cited, as to the significance of granting an exemption, is Downer EDI Mining7 (a different decision to that previously cited as Downer at paras [14] to [16] above) where Member Paratz stated: "[16] An exemption from an Act of the State Parliament, to put the (Applicant) in a different position to other citizens, is not a matter of routine… [17] The Tribunal always has to have regard to the possible implication of an order. Whilst a blanket exemption may seem benign on its surface in the context of a well-meaning application, the Tribunal will be concerned that an unnecessary or overly broad order may deprive citizens and claimants of rights and actions that they would otherwise have." Whether the exemption is necessary [22] The ADCQ stated that the Application demonstrates that an exemption to allow targeted recruitment of females in underground mining may be reasonable and appropriate. [23] It would encourage and facilitate entry into the business of groups who have historically been poorly represented in the business. Whether there are non-discriminatory ways of achieving the objects or purposes for which the exemption is sought [24] There have been no other non-discriminatory methods available to achieve the Applicants' objectives which have been identified. Whether the exemption is in the community interest [25] There is, in my view, community interest in ensuring that diversity and inclusion strategies are implemented which includes encouraging and facilitating entry into the business of groups who have historically been poorly represented in the business. Whether any other persons or bodies other than the applicant support the application. [26] There are no other identified persons or groups in support of the Application. However, it has been noted that the ADCQ is supportive of an exemption being granted to increase the participation of women in the underground mining workforce. The effect of not granting the exemption [27] If the Application was rejected, it would restrict the ability of the Applicants to introduce programs which includes encouraging and facilitating entry into the mining industry of females who have historically been poorly represented in that type of business. 7 Downer EDI Mining [2013] QCAT 99 (27 February 2013) -- 7 of 8 -- 8 Whether it is reasonable and appropriate to grant the exemption [28] The provision of inclusive and diverse strategies to encourage female workers within the mining industry is reasonable and appropriate. Conclusion [29] The above considerations have been addressed by the Commission and I am satisfied that the Application for Exemption should be granted. [30] Accordingly, the Application for an Exemption filed by the Applicants under s 113 of the Act from the operation of ss 14, 15, 15A, 124 and 127, in relation to the attribute in s 7(a) of the Act (i.e. sex), is granted. [31] The Application is granted for the period commencing from the date of this Decision to 28 January 2020. [32] Order accordingly. -- 8 of 8 --